Criminalising personal use of cannabis is the wrong approach

Criminalising personal use of cannabis is the wrong approach

Tuesday, 29 September 2020

In a new submission we’re calling for possession of small amounts and personal use of cannabis, to be decriminalised.

‘I felt like I was a well-known criminal. I just smoke a bit of pot mate I'm not a criminal.' Our client David has a history of childhood trauma and neglect. He started smoking cannabis at a young age to deal with mental health issues and problems in his life. 'I was kicked out of home at 14 and became basically homeless, going in and out of friend's homes. I started smoking around that time. Smoking marijuana levels me out and keeps me mellowed out through the day’.

Despite only smoking at home, David has been charged for cannabis possession multiple times and was once remanded in custody. He says it feels unfair that he is taken to court for small amounts of cannabis for personal use; 'I’m not a risk to others, I smoke at home, not in public, it's in my own time at my own house. So all my charges are from car searches.'

We shared David’s story in a submission calling for possession of small quantities of cannabis for personal use, to be decriminalised.

‘Cannabis offences make up about half of all drug arrests across Australia, more than any other drug. We see personal cannabis use as a health and social issue which should not attract a criminal penalty.  Health and welfare responses are most effective at treating any substance abuse issues or underlying needs,’ said Dan Nicholson, Executive Director of Criminal Law.

Our clients’ stories illustrate the problems caused by categorising cannabis use and personal possession as criminal behaviour. ‘We see people struggling with poverty, mental health issues and dependence, who are not a risk to others, being drawn back into the criminal justice system and spending time on remand when charged with cannabis possession. When our clients receive a criminal conviction, it causes long term barriers to employment and housing’, he said. If cannabis is not decriminalised, as an alternative we believe it should be reclassified as a summary offence, reducing the chances that people are remanded in custody for possession of cannabis.

More cautions and diversions needed

We are also calling for an increase in the use of Police cautions and diversions when it comes to cannabis. The use of diversions in Victoria has halved over the last decade and data shows that police are increasingly likely to pursue court proceedings rather than referrals, diversions and cautions. Crucially, diversion and cautioning have been shown to reduce re-offending in young people. ‘Our lawyers find that police officers often default to charging people for cannabis possession when a caution is available and could be used to link people to services, and continue to prosecute where we believe a diversion would be appropriate’ said Dan.

David ended up spending a year going to court before being referred to engage with disability services as part of his sentence from the problem-solving Assessment and Referral Court. Police had the power to refer David directly to disability services and could have granted David either a caution or an early diversion. He said all the court appearances heightened his anxiety; ‘The court process was stressful. There were several adjournments, so it dragged on and I’ve got anxiety, I don’t like leaving the house and being in crowds, it made me more anxious’.

‘David’s experience shows the harm of dragging someone through the criminal justice system instead of diverting them away from it and giving them the supports they need.’ said Dan.

David says he wishes police would use more discretion rather than charge him every time, 'I know they’re doing their jobs, but there's got to be some kind of decision making when a person isn't hurting anyone else' he said.

'It feels unfair being targeted for something that doesn’t hurt other people. I don't think it should be legal except to people who need it for a medical condition, but it should be looked upon in a different way, a lesser charge, or not in the criminal system' said David.

Our recommendations

Recommendation 1: Cannabis use, and possession of small quantities for personal use, should be decriminalised to reduce the harms of arrest, remand, and convictions.

Recommendation 2: If not decriminalised, the indictable offence of cannabis possession should be reclassified as a summary offence, to avoid the situation where people are remanded for possession of small quantities of cannabis.

Recommendation 3: The use of cautions and diversions for cannabis possession and use should be increased through:

  1. Legislating a caution scheme for children and adults.
  2. Reviewing the police cautioning policy to reduce barriers to granting cautions.
  3. Removing the requirement for police to consent to diversion.
  4. Providing diversion training and support to police officers and reducing workload disincentives.

Recommendation 4: Therapeutic programs should be resourced and available statewide, including the Court Integrated Services Program, Therapeutic Courts, effective and culturally appropriate diversion programs, and integrated services which can address intersecting issues in a person’s life.

More information

Read our Submission to the Inquiry into the Use of Cannabis in Victoria (10 pages).

David’s story – 'I just smoke a bit of pot mate, I'm not a criminal'

David is in his early 30s, has an intellectual disability and lives in regional Victoria. He has a history of childhood trauma and neglect. 'I was kicked out of home at 14 and became basically homeless, going in and out of friend's homes. I started smoking around that time. Smoking marijuana levels me out and keeps me mellowed out through the day, whereas if I drink alcohol it affects me badly and it affects the people around me who I care about’, he said.

David uses cannabis to help with his mental health issues. ‘It feels like a medication. The doctor said I have a dopamine blockout in my brain so this helps me feel steady. Having a joint helps me relax and I can be me. I don't get myself high to where I can't get up and wash the dishes and vacuum the house. I try not to let it affect what need to do through the day. I have tried ice in the past but it sends me off the wall, so I don’t use any of that or even drink alcohol anymore. I don’t like how it makes me feel. I just smoke some pot and I'm straighty 180’.

For years, David had no family or community support and has difficulties with working memory, often forgetting appointments. David has only ever held a Learners driver’s licence (now lapsed). He was pulled over by police for driving an unregistered motor vehicle without a licence. A month later, police pulled him over for unlicensed driving and conducted a search of his car – they found cannabis. He was charged with unlicensed driving and cannabis possession and placed on bail. He says it feels unfair that he is taken to court for small amounts of cannabis for personal use 'I’m not a risk to others, I smoke at home, not in public, it's in my own time at my own house. So all my charges are from car searches.'

The cannabis charge and bail escalated David’s circumstances from minor driving offences to indictable offending. After missing his court date for these charges, a warrant was issued and David was charged with failing to appear. ‘I feel like I'm almost targeted now because police know I smoke pot. Obviously I have a history of possession charges. The last time I got pulled over by the police they asked for my friend’s licence because she was driving and then they did checks on both of us and it felt like they just wanted an excuse to search the car. There was no smell or anything, they knew who I was, knew I smoked pot and that was their excuse to look through the car.’

'It happens every time I interact with police now, it's almost like harassment, a little while ago I bumped into a cop who knew me from when I was a kid and he said "Hi David, what's in your pockets?". I felt like I was a well-known criminal. I just smoke a bit of pot mate I'm not a criminal'.

David was later arrested by police for further unlicensed driving, possession of cannabis and committing an indictable offence on bail (cannabis possession). He was given a place in the Assessment and Referral Court due to his intellectual disability, which sentenced him to an adjourned undertaking with a condition to engage with disability services. 

'Being referred to the National Disability Insurance Scheme has been really good, I think I’m going to see an Alcohol and Drug Counsellor and a Dr who works in community health, but because of COVID-19 I haven’t been able to attend any appointments. The court process was stressful. There were several adjournments so it dragged on and I’ve got anxiety, I don’t like leaving the house and being in crowds, it made me more anxious’.

While ultimately David was put in touch with the services he needed, this was only after spending a year in the court system and being subject to arrest and remand. Police had the power to refer David directly to disability support services and could have granted David either a caution or an early diversion, keeping him out of the court system and reducing his contact with the criminal justice system.

David says he wishes police would use more discretion rather than charge him every time 'I know they’re doing their jobs, but there's got to be some kind of decision making when a person isn't hurting anyone else'.

'It feels unfair being targeted for something that doesn’t hurt other people. I don't think it should be legal except to people who need it for a medical condition, but it should be looked upon in a different way, a lesser charge, or not in the criminal system'.

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